What Makes a Will Legally Binding?
You’ve talked to your spouse or partner about what you would want to happen to your assets and possessions in the event of your death. You’ve spoken to the rest of your family about how they can help your spouse and what you would like to leave to them when you die. You’ve even put it in writing, through emails and other written correspondence. You feel that you’ve made it very clear what kind of funeral arrangements you would like.
Does any of this resemble a Will?
The short answer is No. Read our guide on understanding what makes a Will a legally binding document, and what you need to do to get a Will made.
1) Summary in 30 Seconds
- A home-made document that doesn’t fulfil the requirements of legal Will is not going to be valid or legally binding. Neither does expressing your wishes to family and loved ones.
- Requirements for a valid Will include (1) being over 18 years old and having mental capacity, (2) the document is signed by the testator and witnessed by two people and (3) is a physical paper document.
- It is possible to write a valid Will yourself, but there are some drawbacks to this. Beyond a simple Will, you are going to need legal advice and assistance from a Solicitor.
2) Requirements For a Valid Will
While it is very important to discuss openly with loved ones your wishes and preferences for what would happen to your estate, there are still legal requirements you need to follow to make this a legally binding Will.
- Mental Capacity. In short, this means that you have the requisite mental ability to understand what a Will is and the effect making one is going to have – this would include information such as knowing what your estate is comprised of (what you own, how much money you have, etc.), who you want to leave your estate to, and why. You must be 18 years old or older. You will be presumed to have capacity at the time of writing your Will unless someone decides to contest this after your death. If so, they will have to find evidence to support this. If there is any reason why your mental capacity could later be disputed, such as a diagnosis of Dementia or Alzheimer’s, make sure to take necessary steps to verify this when creating your Will.
- Signed and Witnessed. The Will must be signed by the Testator. This in turn must be witnessed in person by two independent individuals. They must attest to and sign the Will at the same time, in the presence of the Testator. Witnesses cannot be Beneficiaries in the Will or the spouse or civil partner of the Testator. In fact, it is best that these persons are not present at all during the signing and witnessing of the Will. Whilst creating and signing the Will, you want to avoid any indication that anyone else has pressured you or influenced you unduly. This is especially important if your Will has controversial contents, such as omitting certain family members or individuals.
- Physical Paper Document. The Will document itself must still be a physical paper document. It can be handwritten or printed. Therefore when you are making your Will, ensure that you have a way to properly store the original copy long-term. If you have a solicitor write your Will, most law firms also store your Will as we
Due to social distancing measures, there is some flexibility allowed in how a Will can be still witnessed “in person” whilst still staying safe. This includes through a window or an open doorway, at a distance outside or through video conferencing such as Zoom or Skype.
3) Could You Write Your Own Will?
As you can see, the requirements for a valid Will are not exhaustive. And Will-writing itself is not a regulated activity. This is why technically you could write your own Will. Should you?
It is entirely possible to write your own Will, either by using a ready-made template or simply by writing down your wishes for your estate — as well as following the legal requirements above. However, a “D.I.Y.” Will can be risky.
- Lack of professional oversight. If you make your own Will, you are not going to have the guidance of an expert who can spot mistakes or errors you might have made. As a Will is a legal document that only comes into effect after your death, no one might know there are mistakes until after you are gone. By which point, there is nothing you can do. If it is very bad, it may even make the Will invalid, which could make your estate Intestate.
- Lack of expertise or legal knowledge. What might seem comprehensive and well-constructed to a lay-person could show glaring omissions to a solicitor or legal professional. A well-written Will should cover multiple contingencies and eventualities in the way it is set out and written. A knowledge of the legal system is needed to provide you with legal advice and guidance, especially if you have a family or financial estate that is a little more complicated. Professionally written Will adheres to a set language, where the use of certain words are interpreted to have a specific meaning. If you write your own Will, your meaning could be ambiguous and potentially be misunderstood, or even disputed by your Beneficiaries.
- Lack of professional verification. If you write it yourself and only do the bare minimum by fulfilling the legal requirements of a valid Will, it might be difficult for your family, or even the courts, to verify that this was actually your “Last Will and Testament” and not just a passing statement of wishes that you didn’t intend to be legally binding. Additionally, if your capacity at the time of writing is called into question, there was no solicitor present who can attest to this. This could also leave your estate open to disputes.
4) Should You Use a Solicitor?
Having a solid Will doesn’t have to be a stressful or complicated process – but attempting to do it yourself can make it so. Aside from creating a headache for ourselves, we risk leaving a potential mess for our families if we have a poorly written or invalid Will. A financial saving now is not worth the catastrophic impact an Intestate estate could have on your spouse or children.
Ultimately, it is a legally binding document, the contents of which can profoundly affect our family’s and loved one’s future. This means it should be drafted properly and carefully written. If you haven’t made a Will yet, consider instructing a legal expert to advise you on this and draft it for you. If you have previously made your own Will, carefully think about whether it is legally valid and if it is still sufficient now.
Families, finances and circumstances come in all shapes and sizes and it is not easy to envision what the future might hold. A solicitor will look closely at your situation and advise you on the basis of this. Your Will and the rest of your Estate Planning is going to be tailored to you and your family’s needs.